SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 8, 1999
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WHX Corporation
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(Exact name of registrant as specified in its charter)
Delaware 13-3768097
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
110 East 59th Street, New York, New York 10022
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Address of principal executive offices
Registrant's telephone number, including area code: (212) 355-5200
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(Former name or former address, if changed since last report.)
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Item 5. OTHER EVENTS.
At a Special Meeting of Stockholders of WHX Corporation (the
"Company") held on November 8, 1999, the following proposals to amend, until
June 30, 2001, the Company's Certificate of Incorporation and By-Laws were
approved by a majority of the Company's stockholders: (i) to eliminate the right
of stockholders to call a special meeting of stockholders and to permit only the
Chairman of the Board or the Board of Directors to call special meetings of
Stockholders; (ii) to eliminate stockholder action by written consent; and (iii)
to require an affirmative vote of 66-2/3% of the voting power of the then
outstanding shares of any class or series of capital stock of the Company
entitled to vote generally in the election of directors in order (a) to amend,
repeal or adopt provisions inconsistent with any of the adopted amendments to
the Company's Certificate of Incorporation approved at the special meeting and
(b) for the stockholders to amend or repeal any provision of the ByLaws. The
Company has filed an Amendment to its Certificate of Incorporation with the
Secretary of State of Delaware and has restated and amended its By-Laws to
reflect the amendments adopted at the Special Meeting.
For additional information concerning the amendments to the
Registrant's Certificate of Incorporation and By-Laws, reference is made to the
Certificate of Amendment and the Amended and Restated By-Laws which are
incorporated herein by reference and are attached hereto as exhibits 99.1 and
99.2, respectively.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(c) Exhibits.
99.1 Certificate of Amendment to Certificate of Incorporation
filed with the Delaware Secretary of State on November 10,
1999.
99.2 Amended and Restated By-Laws of the Company
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
WHX Corporation
Dated: November 11, 1999 By: /s/ Ronald LaBow
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Name: Ronald LaBow
Title: Chairman of the Board
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EXHIBIT 99.1
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
WHX CORPORATION
Under Section 242 of the General Corporation Law
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It is hereby certified that:
1. The name of the corporation is WHX Corporation (the
"Company").
2. The Certificate of Incorporation of the Company (the
"Certificate of Incorporation") is hereby amended in accordance with the
following resolutions:
RESOLVED, that Article SEVENTH of the Certificate of
Incorporation is hereby amended and restated in its entirety to read
as follows:
"SEVENTH: In furtherance of and not in limitation
of the powers conferred by law, the Board of Directors
is expressly authorized to adopt, alter, amend and
repeal the By-Laws of the Corporation, subject to the
power of the holders of the capital stock of the
Corporation to alter, amend or repeal the By-Laws.
Until June 30, 2001, no adoption, alteration, amendment
or repeal of a By-Law by action of stockholders shall
be effective unless approved by the affirmative vote of
the holders of not less than 66-2/3% of the voting
power of all outstanding shares of Common Stock of the
Corporation and all other outstanding shares of stock
of the Corporation entitled to vote on such matter,
with such outstanding shares of Common Stock and other
stock considered for this purpose as a single class.
Any vote of stockholders required by this Article
SEVENTH shall be in addition to any other vote of
stockholders that may be required by law, this
Certificate of Incorporation, the By-Laws of the
Corporation, any agreement with a national securities
exchange or otherwise."
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RESOLVED, that Article EIGHTH of the Certificate of
Incorporation is hereby amended and restated in its entirety to read
as follows:
"EIGHTH: Subject to the rights of the holders of
any class of Preferred Stock, until June 30, 2001, no
action of stockholders of the Corporation required or
permitted to be taken at any annual or special meeting
of stockholders of the Corporation may be taken without
a meeting of stockholders, without prior written notice
and without a vote, and the power of stockholders of
the Corporation to consent in writing to the taking of
any action without a meeting is specifically denied.
After June 30, 2001, the power of the stockholders to
act by written consent without a meeting, without prior
notice and without a vote shall be as provided by the
Delaware GCL. Notwithstanding the foregoing provisions
of this paragraph, the holders of any series of
Preferred Stock of the Corporation shall be entitled to
take action as a separate class by written consent to
such extent, if any, as may be provided in the terms of
such series. Subject to the rights of the holders of
any class of Preferred Stock, until June 30, 2001, a
special meeting of the stockholders may be called only
by the Chairman of the Board or by the Board of
Directors pursuant to a resolution adopted by a
majority of the Whole Board and the Stockholders shall
have no power to cause the Chairman of the Board or the
Board of Directors to call a special meeting of
stockholders. After June 30, 2001, a special meeting of
stockholders may be called by the Chairman of the
Board, by the Board of Directors pursuant to a
resolution adopted by the Whole Board or by the
Secretary at the direction of a majority of the voting
power of all of the then outstanding shares of Voting
Stock, voting together as a single class."
RESOLVED, that a new Article FOURTEENTH is hereby added to
the Certificate of Incorporation and shall read as follows:
"FOURTEENTH: Until June 30, 2001 and subject to
the provisions of Article THIRTEENTH, Article SEVENTH,
Article EIGHTH and this Article FOURTEENTH shall not be
amended, modified or repealed, and no provision
inconsistent with any such provision shall become part
of this Certificate of Incorporation, unless such
matter is approved by the affirmative vote of the
holders of not less than 66-2/3% of the voting power of
all outstanding shares of Common Stock of the
Corporation and all other outstanding shares of stock
of the Corporation entitled to vote on such matter,
with such outstanding shares of Common Stock and other
stock considered for this purpose as a single class.
Any vote of stockholders required by this Article
FOURTEENTH shall be in addition to any other vote of
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the stockholders that may be required by law, this
Certificate of Incorporation, the By-Laws of the
Corporation, any agreement with a national securities
exchange or otherwise."
3. This Amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Sections
103 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, we have hereunto set our hands this 10th day
of November, 1999.
WHX CORPORATION
/s/ Ronald LaBow
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By: Ronald LaBow
Title: Chairman of the Board
ATTEST:
/s/ Marvin L. Olshan
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By: Marvin L. Olshan
Title: Secretary
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EXHIBIT 99.2
AMENDED AND RESTATED
BY-LAWS
OF
WHX CORPORATION
AS OF NOVEMBER 8, 1999
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1 Delaware Office. The principal office of the
Corporation in the State of Delaware shall be located in the City of Wilmington,
County of New Castle, and the name and address of its registered agent is The
Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L-100,
Dover, Delaware.
SECTION 1.2 Other Offices. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3 Books and Records. The books and records of the
Corporation may be kept inside or outside the State of Delaware at such place or
places as may from time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 Annual Meeting. The annual meeting of the
stockholders of the Corporation shall be held on the last Friday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at 10:00 A.M., local time, at the principal executive
offices of the Corporation, or at such other date, place and/or time as may be
fixed by resolution of the Board of Directors adopted at least ten (10) days
prior to the date so fixed for the purpose of electing directors and for the
transaction of such other business as may properly come before the meeting.
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SECTION 2.2 Special Meeting. Subject to the rights of the
holders of any class of Preferred Stock, until June 30, 2001, a special meeting
of the stockholders may be called only by the Chairman of the Board or by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of directors which the Corporation would have if there were no vacancies
(the "Whole Board"), and the Stockholders of the Corporation shall have no power
to cause the Chairman of the Board or the Board of Directors to call a special
meeting of stockholders. After June 30, 2001, a special meeting of stockholders
may be called by the Chairman of the Board, by the Board of Directors pursuant
to a resolution adopted by the Whole Board or by the Secretary at the direction
of a majority of the voting power of all of the then outstanding shares of
Voting Stock (as defined in Article FOURTH of the Certificate of Incorporation),
voting together as a single class.
SECTION 2.3 Place of Meeting. The Board of Directors may
designate the place of meeting for any annual meeting or for any special meeting
of the stockholders called by the Board of Directors. If no designation is made
by the Board of Directors, or if a special meeting be otherwise called, the
place of meeting shall be the principal office of the Corporation.
SECTION 2.4 Notices of Meeting. Written or printed notice,
stating the place, day and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) days nor
more than sixty (60) days before the date of the meeting, either personally or
by mail, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail the postage thereon prepaid, addressed to the stockholder at his
address as it appears on the stock transfer books of the Corporation. Such
further notice shall be given as may be required by law. Business transacted at
any special meeting shall be confined to the purpose or purposes stated in the
notice of such special meeting. Meetings may be held without notice if all
stockholders entitled to vote are present, of if notice is waived by those not
present.
SECTION 2.5 Quorum. Except as otherwise provided by law or by
the Certificate of Incorporation, a majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when specified
business is to be voted on by a class or series voting as a class, the holders
of a majority of the shares of such class or series shall constitute a quorum of
such class or series for the transaction of such business. The chairman of the
meeting or a majority of the shares so represented may adjourn the meeting from
time to
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time, whether or not there is such a quorum. No notice of time and place of
adjourned meetings need be given except as required by law. The stockholders
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 2.6 Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing by the stockholder, or by his
duly authorized attorney-in-fact. Such proxy must be filed with the Secretary of
the Corporation or his representative at or before the time of the meeting. No
proxy shall be valid after eleven (11) months from the date of its execution,
unless the proxy shall otherwise provide.
SECTION 2.7 Judge(s) of Election. The Board of Directors
shall, in advance of each meeting of stockholders, elect up to three (3) judges,
but no less than one (1) judge, of election to serve with respect to such
meeting of stockholders, and if any judge so elected shall refuse to serve or
shall not be present at such stockholders' meeting, he shall be replaced by the
Board of Directors in advance of such meeting or by the Chairman of such meeting
in advance of any voting at such meeting. All voting at stockholders' meetings
shall be conducted solely under the direction of the judges, and the decision of
a majority of the judges as to the outcome of all voting at such meetings shall
be binding upon the Corporation and its stockholders in the absence of actual
fraud in the decision of a majority of the judges. Any competent person over the
age of twenty-one (21) may be appointed as a judge of election, other than any
director or candidate for the office of director.
SECTION 2.8 Procedure for Election of Directors. Election of
directors at all meetings of the stockholders at which directors are to be
elected shall be by ballot, and, except as otherwise set forth in any Preferred
Stock Designation (as defined in Article FOURTH of the Certificate of
Incorporation) with respect to the right of the holders of any class or series
of Preferred Stock to elect additional directors under specified circumstances,
a plurality of the votes cast thereat shall elect. Except as otherwise provided
by law, the Certificate of Incorporation, any Preferred Stock Designation, the
By-Laws of the Corporation or resolution adopted by the Whole Board, all matters
other than the election of directors submitted to the stockholders at any
meeting shall be decided by a majority of the votes cast with respect thereto.
SECTION 2.9 Action By Written Consent. Subject to the rights
of the holders of any series of preferred stock of the Corporation, until June
30, 2001, no action of stockholders of the Corporation required or permitted to
be taken at any annual
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or special meeting of stockholders of the Corporation may be taken without a
meeting of stockholders, without prior written notice and without a vote, and
the power of stockholders of the Corporation to consent in writing to the taking
of any action without a meeting is specifically denied. After June 30, 2001,
whenever the vote of stockholders at a meeting thereof is required or permitted
to be taken for or in connection with any corporate action, the meeting and vote
of stockholders may be dispensed with if all of the stockholders who would have
been entitled to vote upon the action if such meeting were held shall consent in
writing to such corporate action being taken; or if the Certificate of
Incorporation authorizes the action to be taken with the written consent of the
holders of less than all of the Voting Stock who would have been entitled to
vote upon the action if a meeting were held, then on the written consent of the
stockholders having not less than such percentage of the total number of votes
as may be authorized in the Certificate of Incorporation; provided that in no
case shall the written consent be by the holders of stock having less than the
minimum percentage of the total required by statute for the proposed corporate
action, and provided that prompt notice must be given to all stockholders of the
taking of corporate action without a meeting and by less than unanimous written
consent.
SECTION 2.10 Alien Stockholders. Except as otherwise provided
by law, not more than twenty-five percent, or such other amount as provided
under the Communications Act of 1934, and the rules and regulations promulgated
thereunder, as the same may be amended from time to time (the "Act"), of the
aggregate number of shares of capital stock of the Corporation outstanding in
any class or series of the Corporation shall at any time be held or voted by or
for the account of any Alien (as defined in Article TWELFTH of the Certificate
of Incorporation). The Board of Directors may make such rules and regulations as
it shall deem necessary or appropriate to enforce or waive the foregoing
provisions of this Section 2.10.
SECTION 2.11 Ineligible Investors. No Ineligible Investor
shall acquire or continue to hold or have the right to vote Common Stock. As
used herein the term "Ineligible Investor" shall mean any person whose ownership
or right to vote Common Stock would constitute a violation of the Act, or would
be likely to prevent the Corporation from making any intended acquisition or
undertaking any intended activity, in the opinion of counsel to the Corporation.
SECTION 2.12 Advance Notice of Stockholder Nominees for
Director and Other Stockholder Proposals. (a) The matters to be considered and
brought before any annual or special meeting of stockholders of the Corporation
shall be limited to only such matters, including the nomination and election of
directors, as
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shall be brought properly before such meeting in compliance with the procedures
set forth in this Section 2.12.
(b) For any matter to be properly brought before any annual
meeting of stockholders, the matter must be (i) specified in the notice of
annual meeting given by or at the direction of the Board of Directors, (ii)
otherwise brought before the annual meeting by or at the direction of the Board
of Directors or (iii) brought before the annual meeting in the manner specified
in this Section 2.12(b) (x) by a stockholder that holds of record stock of the
Corporation entitled to vote at the annual meeting on such matter (including any
election of a director) or (y) by a person (a "Nominee Holder") that holds such
stock through a nominee or "street name" holder of record of such stock and can
demonstrate to the Corporation such indirect ownership of, and such Nominee
Holder's entitlement to vote, such stock on such matter. In addition to any
other requirements under applicable law, the certificate of incorporation and
these by-laws, persons nominated by stockholders for election as directors of
the Corporation and any other proposals by stockholders shall be properly
brought before an annual meeting of stockholders only if notice of any such
matter to be presented by a stockholder at such meeting (a "Stockholder Notice")
shall be delivered to the Secretary of the Corporation at the principal
executive office of the Corporation not less than ninety nor more than one
hundred and twenty days prior to the first anniversary date of the annual
meeting for the preceding year; provided, however, that if and only if the
annual meeting is not scheduled to be held within a period that commences thirty
days before and ends thirty days after such anniversary date (an annual meeting
date outside such period being referred to herein as an "Other Meeting Date"),
such Stockholder Notice shall be given in the manner provided herein by the
later of (i) the close of business on the date ninety days prior to such Other
Meeting Date or (ii) the close of business on the tenth day following the date
on which such Other Meeting Date is first publicly announced or disclosed. Any
stockholder desiring to nominate any person or persons (as the case may be) for
election as a director or directors of the Corporation at an annual meeting of
stockholders shall deliver, as part of such Stockholder Notice, a statement in
writing setting forth the name of the person or persons to be nominated, the
number and class of all shares of each class of stock of the Corporation owned
of record and beneficially by each such person, as reported to such stockholder
by such person, the information regarding each such person required by
paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the
Securities and Exchange Commission, each such person's signed consent to serve
as a director of the Corporation if elected, such stockholder's name and
address, the number and class of all shares of each class of stock of the
Corporation owned of record and beneficially by such stockholder and, in the
case of a Nominee Holder, evidence establishing such
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Nominee Holder's indirect ownership of stock and entitlement to vote such stock
for the election of directors at the annual meeting. Any stockholder who gives a
Stockholder Notice of any matter (other than a nomination for director) proposed
to be brought before an annual meeting of stockholders shall deliver, as part of
such Stockholder Notice, the text of the proposal to be presented and a brief
written statement of the reasons why such stockholder favors the proposal and
setting forth such stockholder's name and address, the number and class of all
shares of each class of stock of the Corporation owned of record and
beneficially by such stockholder, any material interest of such stockholder in
the matter proposed (other than as a stockholder), if applicable, and, in the
case of a Nominee Holder, evidence establishing such Nominee Holder's indirect
ownership of stock and entitlement to vote such stock on the matter proposed at
the annual meeting. As used in these by-laws, shares "beneficially owned" shall
mean all shares which such person is deemed to beneficially own pursuant to
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the "Exchange
Act"). If a stockholder is entitled to vote only for a specific class or
category of directors at a meeting (annual or special), such stockholder's right
to nominate one or more individuals for election as a director at the meeting
shall be limited to such class or category of directors.
Notwithstanding any provision of this Section 2.12 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation at the next annual meeting of stockholders is
increased by virtue of an increase in the size of the Board of Directors and
either all of the nominees for director at the next annual meeting of
stockholders or the size of the increased Board of Directors is not publicly
announced or disclosed by the Corporation at least one hundred days prior to the
first anniversary of the preceding year's annual meeting, a Stockholder Notice
shall also be considered timely hereunder, but only with respect to nominees to
stand for election at the next annual meeting as the result of any new positions
created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive office of the Corporation not later than
the close of business on the tenth day following the first day on which all such
nominees or the size of the increased Board of Directors shall have been
publicly announced or disclosed.
(c) Except as provided in the immediately following sentence,
no matter shall be properly brought before a special meeting of stockholders
unless such matter shall have been brought before the meeting pursuant to the
Corporation's notice of such meeting. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any stockholder entitled to
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vote for the election of such director(s) at such meeting may nominate a person
or persons (as the case may be) for election to such position(s) as are
specified in the Corporation's notice of such meeting, but only if the
Stockholder Notice required by Section 2.12(b) hereof shall be delivered to the
Secretary of the Corporation at the principal executive office of the
Corporation not later than the close of business on the tenth day following the
first day on which the date of the special meeting and either the names of all
nominees proposed by the Board of Directors to be elected at such meeting or the
number of directors to be elected shall have been publicly announced or
disclosed.
(d) For purposes of this Section 2.12, a matter shall be
deemed to have been "publicly announced or disclosed" if such matter is
disclosed in a press release reported by the Dow Jones News Service, the
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting or
a special meeting, or any announcement thereof, commence a new period for the
giving of notice as provided in this Section 2.12. This Section 2.12 shall not
apply to (i) any stockholder proposal made pursuant to Rule 14a-8 under the
Exchange Act or (ii) any nomination of a director in an election in which only
the holders of one or more series of Preferred Stock of the Corporation issued
pursuant to Article FOURTH of the certificate of incorporation are entitled to
vote (unless otherwise provided in the terms of such stock).
(f) The chairman of any meeting of stockholders, in addition
to making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given in
the manner provided in this Section 2.12 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by the statute or
by the Certificate of Incorporation or by these By-Laws required to be exercised
or done by the stockholders.
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SECTION 3.2 Number, Tenure and Qualifications. Subject to the
rights of the holders of any class or series of Preferred Stock to elect
directors under specified circumstances, the number of directors shall be fixed
from time to time exclusively pursuant to a resolution adopted by a majority of
the Whole Board, provided, however, that in no event shall the Whole Board be
greater than ten (10) directors. The Board of Directors shall be divided into
three classes, designated Class I, Class II and Class III, as nearly equal in
number as possible, and the term of office of directors of one class shall
expire at each annual meeting of stockholders, and in all cases as to each
director until his successor shall be elected and shall qualify or until his
earlier resignation, removal from office, death or incapacity. The initial term
of office of directors of Class I expire at the annual meeting of stockholders
in 1997; that of Class II shall expire at the annual meeting in 1998; and that
of Class III shall expire at the annual meeting in 1999; and in all cases as to
each director until his successor shall be elected and shall qualify or until
his earlier resignation, removal from office, death or incapacity. At each
annual meeting of stockholders the number of directors equal to the number of
directors of the class whose term expires at the time of such meeting (or, if
less, the number of directors properly nominated and qualified for election)
shall be elected by a plurality of the votes cast to hold office until the third
succeeding annual meeting of stockholders after their election, and until his
successor shall be elected and shall qualify or until his earlier resignation,
removal from office, death or other incapacity, subject to the provisions of
Section D and Section E of Article SIXTH of the Certificate of Incorporation.
SECTION 3.3 Regular Meetings. A regular meeting of the Board
of Directors shall be held without other notice than this By-Law immediately
after, and the same place as, the Annual Meeting of Stockholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4 Special Meetings. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board or a
majority of the Board of Directors. The person or persons authorized to call
special meetings of the Board of Directors may fix the place and time of the
meetings.
SECTION 3.5 Notice. Notice of any special meeting shall be
given to each director at his business or residence in writing, by telegram, by
facsimile or by telephone communication. If mailed, such notice shall be deemed
adequately delivered when deposited in the United States mails so addressed,
with postage thereon prepaid, at least five (5) days before such meeting. If
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by telegram or facsimile, such notice shall be deemed adequately delivered when
such notice is sent at least twenty-four (24) hours before such meeting. If by
telephone, the notice shall be given at least twelve (12) hours prior to the
time set for the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these By-Laws,
as provided under Article VII, Section 7.1. A meeting may be held at any time
without notice if all the directors are present or if those not present waive
notice of the meeting in writing, either before or after such meeting.
SECTION 3.6 Quorum. A whole number of directors equal to at
least a majority of the Whole Board shall constitute a quorum for the
transaction of business, but if at any meeting of the Board of Directors there
shall be less than a quorum present, a majority of the directors present may
adjourn the meeting from time to time without further notice. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. The directors present at a duly
organized meeting may continue to transact business until adjournment
notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.7 Vacancies. Subject to the rights of the holders of
any class or series of Preferred Stock, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies of the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause (other than a vacancy
resulting from removal by the stockholders, in which case such vacancy shall be
filled by the stockholders) shall be filled only by a majority vote of the
directors then in office, though less than a quorum. Additional directorships
resulting from an increase in the number of directors shall be apportioned by
the Board of Directors among the classes as equally as possible. Other vacancies
of the Board of Directors filled between annual meetings of stockholders shall
be to the class of directors to which the director previously belonged that is
being replaced. Directors so chosen shall hold office until the next annual
election of directors at which the term of the class to which he has been
elected expires and until his successor shall have been duly elected and
qualified, or until his earlier death, resignation or removal. No decrease in
the number of authorized directors constituting the entire Board of Directors
shall shorten the term of any incumbent director.
SECTION 3.8 Executive Committee. The Board of Directors may
establish at such times as it shall determine, including immediately following
each annual meeting of stockholders or a
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special meeting of the same held for the election of a majority of directors,
shall meet and shall appoint from its number by a majority vote of the Whole
Board an Executive Committee of such number of members as from time to time may
be selected by the Board, to serve until the next annual or special meeting at
which a class of directors is elected or until the respective successor of each
is duly appointed. The Executive Committee shall possess and may exercise all
the powers and authority of the Board of Directors in the management and
direction of the business and affairs of the Corporation, except as limited by
law and except for the power to change the membership or to fill vacancies in
the Board or said Committee. The Board shall have the power at any time to
change the membership of said Committee, to fill vacancies in it, to make rules
for the conduct of its business, or to dissolve it.
SECTION 3.9 Removal. Subject to the rights of the holders of
any class or series of Preferred Stock, any director, or the entire Board of
Directors, may be removed from office at any time, only for cause and only by
the affirmative vote of the holders of at least a majority of the voting power
of all of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class.
SECTION 3.10 Chairman of the Board. The Board of Directors
shall elect a Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors. The Chairman of
the Board or such officer as he shall designate shall have responsibility for
overseeing the affairs of the Corporation and shall perform all duties
incidental to his office which may be required by law and all such other duties
as are properly required of him by the Board of Directors. Except where by law
the signature of the President (if any) is required, the Chairman of the Board
shall possess the same power as the President to sign all certificates,
contracts, and other instruments of the Corporation which may be authorized by
the Board of Directors. He shall make reports to the Board of Directors and the
stockholders, and shall perform all such other duties as are properly required
of him by the Board of Directors. He shall see that all orders and resolutions
of the Board of Directors and of any committee thereof are carried into effect.
SECTION 3.11 Vice-Chairman of the Board. The Board of
Directors may elect a Vice-Chairman of the Board. The Vice- Chairman of the
Board (if any) shall have such powers and duties as the Board of Directors may
determine. If the Chairman of the Board is absent or unable to act, the
Vice-Chairman of the Board shall, when present, preside at all meetings of the
Board of Directors and the stockholders. In the event of the death or
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incapacity of the Chairman of the Board, the Vice-Chairman of the Board shall
assume all powers and responsibilities held by the Chairman of the Board until
such time as the Board of Directors shall elect a new Chairman of the Board.
ARTICLE IV
OFFICERS
SECTION 4.1 Elected Officers. The elected officers of the
Corporation shall be a President, a Secretary, a Treasurer, and such other
officers (including, without limitation, a Chief Executive Officer, a Chief
Operating Officer, and Vice- Presidents) as the Board of Directors from time to
time may deem proper. All officers chosen by the Board of Directors shall each
have such powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this ARTICLE IV. Such officers shall also
have such powers and duties as from time to time may be conferred by the Board
of Directors or by any Committee thereof.
SECTION 4.2 Election and Term of Office. The elected officers
of the Corporation shall be elected annually by the Board of Directors at the
regular meeting of the Board of Directors held after each annual meeting of the
stockholders. If the election of officers shall not be held at such meeting such
election shall be held as soon thereafter as convenient. Each officer shall hold
office until his successor shall have been duly elected and shall have qualified
or until his death or until he shall resign, but any officer may be removed from
office at any time by the affirmative vote of a majority of the members of the
Whole Board.
SECTION 4.3 President. The President (if one shall have been
chosen by the Board of Directors) shall act in a general executive capacity and
shall oversee the general management of and assist the Chairman of the Board in
the operations of the Corporation's business and general supervision of its
policies and affairs. The President shall, in the absence of or because of the
inability to act of the Chairman of the Board, perform all duties of the
Chairman of the Board and preside at all meetings of stockholders and of the
Board of Directors. The President may sign with the Secretary, or an Assistant
Secretary, or any other proper officer of the Corporation authorized by the
Board of Directors, certificates, contracts, and other instruments of the
Corporation as authorized by the Board of Directors. In the event of the death,
inability or refusal to act of the President, the Board of Directors shall
promptly meet for the purpose of electing his successor.
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SECTION 4.4 Removal. Any officer elected by the Board of
Directors may be removed by a majority of the members of the Whole Board
whenever, in their judgment, the best interests of the Corporation would be
served thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
SECTION 4.5 Vacancies. A newly created office and a vacancy in
any office because of death, resignation, or removal may be filled by the Board
of Directors for the unexpired portion of the term at any meeting of the Board
of Directors.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1 Stock Certificates and Transfers. The interest of
each stockholder of the Corporation shall be evidenced by certificates for
shares of stock in such form as the appropriate officers of the Corporation may
from time to time prescribe. The shares of stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for the same
number of shares, with an assignment and power of transfer endorsed thereon or
attached thereto, duly executed, with such proof of the authenticity of the
signature as the Corporation or its agents may reasonably require.
The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe,
which resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
SECTION 5.2 Legend. Every certificate of stock shall have a
restriction noted conspicuously on the certificate and shall set forth on either
the face or back of the certificate a legend informing the holder of the
certificate that the shares of stock represented by the certificate shall not be
transferred to any Alien if, as a result of such transfer, in excess of twenty-
five percent (25%) of the total number of outstanding shares of
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capital stock of the Corporation, or such other amount as provided under the
Act, would be held by Aliens.
SECTION 5.3 Record of Alien and Ineligible Investor Ownership.
The Board of Directors may make such additional rules and regulations as it
shall deem necessary or appropriate so that accurate records may be kept of the
shares of stock of the Corporation owned of record and/or voted by or for the
account of Aliens and/or Ineligible Investors.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and end on the last day of December of
each year, or shall begin and end on such other days as shall be fixed by
resolution of the Board of Directors.
SECTION 6.2 Dividends. The Board of Directors may from time to
time declare, and the Corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law.
SECTION 6.3 Seal. The corporate seal may bear in the center
the emblem of some object, and shall have inscribed thereunder the words
"Corporate Seal" and around the margin thereof the words "WHX Corporation -
Delaware 1994."
SECTION 6.4 Waiver of Notice. Whenever any notice is required
to be given to any stockholder or director of the Corporation under the
provisions of the General Corporation Law of the State of Delaware, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the stockholders or the Board of
Directors need be specified in any waiver of notice of such meeting.
SECTION 6.5 Audits. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be made
annually.
SECTION 6.6 Resignations. Any director or any officer, whether
elected or appointed, may resign at any time by serving written notice of such
resignation on the Chairman of the Board, the President, or the Secretary, and
such resignation shall be
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deemed to be effective as of the close of business on the date said notice is
received by the Chairman of the Board, the President, or the Secretary. No
formal action shall be required of the Board of Directors or the stockholders to
make any such resignation effective.
SECTION 6.7 Indemnification of Directors, Officers, Employees
and Agents. The Corporation shall provide indemnification as set forth in
Article NINTH of the Certificate of Incorporation.
ARTICLE VII
AMENDMENTS
SECTION 7.1 Amendments. Until June 30, 2001, these By- Laws
may be amended, added to, rescinded or repealed at any meeting of the Board of
Directors or of the stockholders, provided notice of the proposed change was
given in the notice of the meeting and, in the case of a meeting of the Board of
Directors, in a notice given not less than two days prior to the meeting. Until
June 30, 2001, no adoption, alteration, amendment or repeal of a By-Law by
action of stockholders shall be effective unless approved by the affirmative
vote of the holders of not less than 66-2/3% of the voting power of all
outstanding shares of Common Stock of the Corporation and all other outstanding
shares of stock of the Corporation entitled to vote on such matter, with such
outstanding shares of Common Stock and other stock considered for this purpose
as a single class. After June 30, 2001, these By-Laws may be amended, added to,
rescinded or repealed at any meeting of the Board of Directors or of the
stockholders, provided notice of the proposed change was given in the notice of
the meeting and, in the case of a meeting of the Board of Directors, in a notice
given not less than two days prior to the meeting.
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